Toker v. Pollak

• Citation: 376 N.E.2d 163,405 N.Y.S.2d 1,44 N.Y.2d 211
• Parties: , 376 N.E.2d 163 Alfred TOKER, Respondent-Appellant, v. Harry R. POLLAK, Respondent, and Henry J. Stern, Appellant-Respondent.
• Decision Date: 06 April 1978
• Court: New York Court of Appeals

Page 1

405 N.Y.S.2d 1

44 N.Y.2d 211, 376 N.E.2d 163

Alfred TOKER, Respondent-Appellant, v. Harry R. POLLAK, Respondent, and Henry J. Stern, Appellant-Respondent.

Court of Appeals of New York.

April 6, 1978.

Dale A. Schreiber and Allen G. Schwartz, New York City, for appellant-respondent

Alfred Toker, pro se, and Darrell Buchbinder and H. Leonard Toker, New York City, for Alfred Toker, respondent-appellant.

W. Bernard Richland, Corp. Counsel, New York City (L. Kevin Sheridan, Charles E. Clayman and Barbara B. Guibord, New York City, of counsel), for the New York City Commissioner of Investigation, amicus curiae.

Robert M. Morgenthau, Dist. Atty. (Peter L. Zimroth and Edward Agnew McDonald, New York City, of counsel), for New York County, amicus curiae.

Stuart A. Summit, New York City, for the Mayor's Committee on the Judiciary, amicus curiae.

OPINION OF THE COURT

JASEN, Judge.

The principal issue before us is whether allegedly defamatory oral statements made by the defendant to a District Attorney concerning the possible commission of a crime by the plaintiff, as well as statements made in an affidavit submitted to the District Attorney by the defendant in lieu of an appearance before the Grand Jury are, in an action for libel and slander, protected by an absolute or a qualified privilege.

Plaintiff Toker is an Assistant Corporation Counsel of the City of New York, a position which he has held since 1954. In 1961, defendant Stern's mother suffered a broken wrist as a result of a fall which occurred on a New York City sidewalk. At the time of the injury, Stern, an attorney, was confidential secretary to a Justice of the Supreme Court, New York County a position which prohibited him from representing his mother in her personal injury action against the city. He, therefore, retained defendant Pollak, a personal friend, to pursue his mother's claim. Plaintiff Toker, as Assistant Corporation Counsel representing the city, settled the action in 1963. At that time, Stern alleges Pollak informed him that he had paid Toker a sum of money to settle the claim. Upon learning of this information, Stern took no action to report the purported bribe.

In the spring of 1972, however, Toker became a candidate in the Democratic primary for Judge of the Civil Court for the Municipal Court District in lower Manhattan. Stern, then First Deputy Commissioner in the Department of Consumer Affairs of the City of New York, informed Victor A. Kovner, a member of the Mayor's Committee on the Judiciary (Mayor's Committee), of the purported bribe involving Toker. It is Stern's contention that he informed Kovner that the information he was relating was based upon hearsay rather than personal or direct knowledge; Stern never appeared before the Mayor's Committee, however, because Kovner advised Stern that the Mayor's Committee had jurisdiction solely over appointive judicial offices. As chance would have it, Toker was unsuccessful in his election bid.

Subsequently, in January of 1974, Toker's name was submitted by Mayor Beame to the Mayor's Committee for a review of his qualifications for appointment to the Criminal Court of the City of New York. At the end of January or beginning of February, Stern received a telephone call from Kovner requesting Stern to reaffirm the information he related to Kovner in 1972 concerning Toker's involvement in the alleged bribe. At this time, Stern was also informed by Kovner that the Mayor's Committee had decided to refer this matter to the Department of Investigation of the City of New York (Department of Investigation). When asked by Kovner whether he would respond to inquiries by the Department of Investigation, Stern contends that he responded affirmatively, but again cautioned that he had no direct or personal knowledge of Toker's participation in the bribe.

Shortly thereafter, Stern received a telephone call from Nicholas Scoppetta, Commissioner of the Department of Investigation, requesting Stern to meet with him to discuss the Toker incident. Stern complied with this request, but once again disclaimed personal knowledge of the bribery. The matter was then referred by the Department of Investigation to the District Attorney of New York County.

In June of 1974, Stern appeared at the office of the District Attorney, upon the latter's request, and was informed by the Assistant District Attorney that an investigation had been commenced and that unless he responded to the questions posed, he would be subpoenaed to appear before the Grand Jury. The Assistant District Attorney also requested that Stern submit an affidavit summarizing his testimony in lieu of Grand Jury testimony. He was instructed that absent submission of an affidavit, he would be subpoenaed to appear before the Grand Jury. After again cautioning as to his lack of personal knowledge, Stern submitted the affidavit on June 27, 1974. Finding that there existed no legal evidence of wrongdoing on the part of Toker, the District Attorney concluded that presentment to the Grand Jury was unnecessary.

Plaintiff Toker commenced this action on December 12, 1974, alleging causes of action in libel and slander against both Pollak and Stern. Both defendants moved for summary judgment on each cause of action. Special Term granted Pollak's cross motion for summary judgment on the libel cause of action, holding that Toker failed to establish any writing or publication by Pollak within the one-year Statute of Limitations. (CPLR 215.) As to the cause of action against Pollak for slander, Special Term denied Pollak's cross motion for summary judgment, "without prejudice to renewal upon the completion of Stern's examination before trial". With respect to Stern's motion for summary judgment, Special Term denied it as to each cause of action. It was the court's opinion that the affidavit upon which the libel cause of action was based was a qualifiedly privileged communication. Although Stern argued that Toker had failed to establish evidentiary facts from which malice could be inferred, Special Term concluded otherwise.

On appeal, taken by Stern, the Appellate Division modified the order of Special Term, holding that the cause of action against Stern for libel should have been dismissed. The court reasoned that the affidavit submitted by Stern to the District Attorney in lieu of testimony before the Grand Jury was an absolutely privileged communication. The Appellate Division agreed, however, with Special Term's denial of Stern's motion for summary judgment on the slander cause of action. Although the court believed it arguable that Stern did not repeat his statement to the Mayor's Committee within the Statute of Limitations and that the oral statements to the District Attorney were absolutely privileged as the affidavit was, it concluded that the oral statements to the Department of Investigation were only qualifiedly privileged.

On these cross appeals, Stern, arguing that all of the communications he made were absolutely privileged, seeks a reversal of the lower court's denial of his motion for summary judgment on the slander cause of action. Toker seeks reversal of the Appellate Division's grant of Stern's motion for summary judgment on the libel cause of action, arguing that none of Stern's communications, including the affidavit submitted to the District Attorney, were absolutely privileged.

We hold that both the oral statements made by Stern to the District Attorney and the affidavit submitted upon the latter's request should be afforded a qualified privilege. Similarly, we hold that Stern's statements to the Department of Investigation should also be afforded a qualified privilege.

Public policy mandates that certain communications, although defamatory, cannot serve as the basis for the imposition of liability in a defamation action. (Shenkman v. O'Malley, 2 A.D.2d 567, 572, 157 N.Y.S.2d 290, 295; Restatement, Torts (2d), § 584 et seq.; Prosser, Torts (4th ed.), § 114; 35 N.Y.Jur., Libel and Slander, § 91.) Communications falling within this category are deemed privileged, either absolutely or qualifiedly. (Shenkman v. O'Malley, supra; 35 N.Y.Jur., Libel and Slander, § 91.)

Communications afforded an absolute privilege are perhaps more appropriately thought of as cloaked with an immunity, rather than a privilege against the imposition of liability in a defamation action. (Prosser, Torts (4th ed.), § 114, n. 66.) This immunity, which protects communications irrespective of the communicant's motives, has been stringently applied. In general, its protective shield has been granted only to those individuals participating in a public function, such as judicial (Pecue v. West, 233 N.Y. 316, 135 N.E. 515), legislative (Roberts v. Pratt, 174 Misc. 585, 21 N.Y.S.2d 545), or executive proceedings (Cheatum v. Wehle, 5 N.Y.2d 585, 186 N.Y.S.2d 606, 159 N.E.2d 166). The absolute protection afforded such individuals is designed to ensure that their own personal interests especially fear of a civil action, whether successful or otherwise do not have an adverse impact upon the discharge of their public function. (Restatement, Torts (2d), § 584 et seq.)

In contrast, communications protected by a qualified privilege do not provide the communicant with an immunity against the imposition of liability in a defamation action. A qualified privilege does, however, negate any presumption of implied malice flowing from a defamatory statement, and places the burden of proof on this issue upon the plaintiff. (Lovell Co. v. Houghton, 116 N.Y. 520, 525, 22 N.E. 1066; Doyle v. Clauss, 190 App.Div. 838, 842, 180 N.Y.S. 671, 674.) A communication is said to be qualifiedly privileged where it "is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned." (Lovell Co. v. Houghton, 116 N.Y. at p. 526, 22 N.E., at p. 1066, supra.) The interest championed...